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Riley v. Lusk

United States District Court, M.D. Pennsylvania

July 29, 2019

MARK LUSK, Defendant.


          Matthew W. Brann United States District Judge

         I. BACKGROUND

         On February 27, 2019, Plaintiffs, Chad Riley and Mark Phillips, filed a one count First Amendment Retaliation complaint against Defendant Mark Lusk. On May 24, 2019, Defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.[1] The motion is now ripe for disposition; for the reasons that follow, the motion is granted. Plaintiffs will be provided leave to amend the complaint.


         A. Motion to Dismiss Standard

         Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a complaint, in whole or in part, if the plaintiff has failed to “state a claim upon which relief can be granted.” A motion to dismiss “tests the legal sufficiency of a pleading”[2] and “streamlines litigation by dispensing with needless discovery and factfinding.”[3] “Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”[4] This is true of any claim, “without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one.”[5]

         Following the Roberts Court's “civil procedure revival, ”[6] Bell Atlantic Corporation v. Twombly[7] and Ashcroft v. Iqbal[8] tightened the standard that district courts must apply to 12(b)(6) motions.[9] Accordingly, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”[10] “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[11]“Although the plausibility standard does not impose a probability requirement, it does require a pleading to show more than a sheer possibility that a defendant has acted unlawfully.”[12] Moreover, “[a]sking for plausible grounds . . . calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of [wrongdoing].”[13]

         The plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”[14] No. matter the context, however, “[w]here a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'”[15]

         When disposing of a motion to dismiss, the Court “accept[s] as true all factual allegations in the complaint and draw[s] all inferences from the facts alleged in the light most favorable to [the plaintiff].”[16] However, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.”[17] “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”[18]

         As a matter of procedure, the United States Court of Appeals for the Third Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must take three steps. First, it must tak[e] note of the elements [the] plaintiff must plead to state a claim. Second, it should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, [w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.[19]

         Of additional consideration to this particular motion is the fact that Defendant has attached several documents, most pertinently, evidence of two pending two state court actions, to his motion.

         “Ordinarily, a court may not consider documents outside the pleadings when deciding a motion to dismiss.”[20] Typically, to consider materials outside the complaint, a motion to dismiss must be converted to a motion for summary judgment.[21] But, “[c]onsideration of materials outside the complaint is not entirely foreclosed on a 12(b)(6) motion.”[22] A court may consider the full text of a document that is “integral to or explicitly relied upon” in a complaint without converting the motion to dismiss into a motion for summary judgment.[23]

         “However, before materials outside the record may become the basis for a dismissal, several conditions must be met.”[24] “For example, even if a document is ‘integral' to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document.”[25] It must also be clear that there exist no material disputed issues of fact regarding the relevance of the document.[26] In this matter, I find that these conditions have been met and will consequently consider Defendant's attachments.

         B. Facts Alleged in the Complaint

         1. The Instant Federal Complaint[27]

         The facts alleged in the complaint, which I must accept as true for the purposes of this motion, are as follows.

         Plaintiffs Chad Riley and Mark Phillips are, and were at all times material to the complaint, elected Lycoming County, Pennsylvania constables. Defendant Mark Lusk is, and was at all times material to the complaint, the elected Lycoming County sheriff.

         Constables receive work, such as criminal warrants and prisoner transport, from the sheriff's office. Constables receive other work, such as serving civil process and “magisterial work, [28] from the magisterial district judges. The complaint alleges that Sheriff “Lusk took it upon himself to ‘oversee' the constables in Lycoming County, to include providing payment for work done for the court and magisterial district judges' courts.”[29]

         In 2017, Lusk was running for re-election as sheriff, with Riley as his opponent and Phillips openly supporting Riley. After Lusk prevailed in the May 2017 primary election, the complaint alleges that all constables who supported Riley, including Phillips, were told that “their services were no longer needed, ” and to “turn in all of their warrants and equipment.”[30] “As a direct result of the defendant's conduct, the plaintiffs were cut off from any work from the courthouse that came through the defendant's office” and “from the magisterial district justices' [sic] offices.”[31] The complaint also alleges that one of the Lycoming County magisterial district judges told Riley that he was “being continually harassed by the sheriff's office not to use Chad Riley or Mark Phillips.”[32] As such, the complaint further alleges that Lusk “in a de facto employer stance” retaliated against Plaintiffs in violation of the First Amendment to the United States Constitution.[33]

         2. First State Court Action

         A First State Court action is currently pending, proceeding on an amended complaint. A proposed second amended complaint had also been filed, but the Court of Common Pleas of Lycoming County, Pennsylvania has not yet granted or denied this motion. The pending motion to amend in the Court of Common Pleas makes disposition of the instant motion more difficult, as one of the considerations that I will discuss below is whether the action is proceeding with the same or different parties in the concurrent federal and state actions.

         The amended complaint in the First State Court action is captioned as Riley and Phillips against Lusk and all the Lycoming County magisterial district judges.[34] The amended complaint is a declaratory judgment action alleging that as a result of the primary election challenge Plaintiffs lost work, and asks that court “to declare and adjudge that the [sic] Mark Lusk and the remaining defendants do not have the right to take away work from the constables, and declare that the [sic] Mark Lusk's actions against the petitioners null and void pursuant to Pennsylvania law.”[35]

         The proposed second amended complaint is Riley and Phillips against Lusk only. The allegations of the declaratory judgment action remain the same; the only changes to the proposed second amended complaint are that it eliminates the district magisterial judge defendants and adds a demand for compensatory and punitive damages.

         3. Second State Court Action[36]

         A Second State Court action is also currently pending in the Court of Common Pleas of Lycoming County, proceeding on a February 4, 2019 amended complaint. It is a one count defamation action by the two Plaintiffs here against the same Defendant here. This action alleges that after Lusk's May 2017 primary election win, he began making defamatory statements about Plaintiffs to the local magisterial district court judges. Specifically, the Second State Court action's amended complaint alleges that Lusk said that Riley committed “election law violations” and that Phillips had “health issues and had fallen asleep in court.”[37]Riley and Phillips allege that they were denied work as a result of these allegedly defamatory statements.

         C. Analysis

         It is evident to this Court that Plaintiffs are struggling to discern causes of action against the Defendant. It is unusual to find three separate causes of action between the same parties using the same “common nucleus of operative fact” where Plaintiffs' “claims are such that he would ordinarily be expected to try them all in one judicial proceeding, [] assuming substantiality of the federal issues, there is power in federal courts to hear the whole.”[38] Instead, Plaintiffs have undertaken this odd piecemeal strategy that has resulted in them paying three separate filing fees and proceeding in three separate actions in both state and federal court.

         The result of Plaintiffs' inexplicable strategy, with multiple filings, is that this Court's time has been wasted by attending to complex federal abstention doctrines and a state law procedural rules, in what should have been an simple memorandum explaining that under existing Third Circuit precedent, Plaintiffs have failed to state a claim for First Amendment retaliation, and thus will be given one, and only one, opportunity to plead over.

         Be that as it may, I take each argument for dismissal in turn.

         1. Younger Abstention Doctrine

         Younger[39] “and its progeny espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances.”[40] Younger is not a jurisdictional mandate, but a doctrine created by its namesake case rooted in federalism, the concept of “a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.”[41] The United States Court of Appeals for the Third Circuit has instructed that when the dictates of Younger are met, “district courts must abstain from exercising jurisdiction over a particular claim where resolution of that claim in federal court would offend principles of comity by interfering with an ongoing state proceeding.”[42]

         The United States Supreme Court in Sprint Commc'ns, Inc. v. Jacobs, [43]clarified the requirements for Younger abstention and defined the limited circumstances under which the doctrine can be invoked, noting: “federal courts ordinarily should entertain and resolve on the merits an action within the scope of a jurisdictional grant, ” and that “the pendency of an action in a state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction.”[44] “The boundaries for the application of the doctrine remain somewhat elusive.”[45] “But from its inception, it has been clear that Younger abstention only comes into play when an important state interest is implicated.”[46]

         Younger abstention is warranted in only three[47] “exceptional circumstances”: first, pending state law criminal charges; second, civil enforcement proceedings[48](i.e., “quasi-criminal proceedings”); and third “civil proceedings involving certain orders that are uniquely in furtherance of the state courts' ability to perform their judicial functions.”[49]

         Defendant in this matter argues that the third Sprint category applies. This third category requires that the state's interest in maintaining the proceeding in question uninterrupted by the federal judiciary be “of sufficiently great import.”[50]I respectfully disagree.

         This Court's resolution of a first amendment retaliation claim under the United States Constitution does not implicate any sort of “plausibly important state interest.”[51] Because “abstention from the exercise of federal jurisdiction is the ‘exception, not the rule'”[52] I decline to dismiss this action based on Younger, as the proceedings do not fit into any of the three limited Sprint categories.[53]

         2. Colorado River Abstention Doctrine

         Defendants next argue that abstention is appropriate under the Colorado River doctrine because the actions in the Lycoming County Court of Common Pleas and this federal action are parallel proceedings which demonstrate “extraordinary circumstances” justifying abstention. I respectfully disagree.

         Federal courts have a “virtually unflagging obligation to exercise the jurisdiction given them.”[54] The Colorado River doctrine, however, permits courts to abstain from exercising jurisdiction by staying or dismissing a pending federal action in favor of a parallel state court proceeding.[55] This abstention is based on “principles of ‘[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.' ”[56] Pursuant to a directive by the Supreme Court, lower federal courts must apply this doctrine cautiously and be mindful that abstention is an “extraordinary and narrow exception.”[57]

         The abstention analysis comprises a two-part inquiry: first, the court must decide whether the actions are indeed “parallel”; second, it must use a six-part test to decide whether the matters present the “extraordinary circumstances” contemplated by Colorado River and its progeny.[58]

         I turn now to the threshold question. Generally, proceedings are “parallel” when they “involve the same parties and substantially identical claims, raising nearly identical allegations and issues.”[59] In reaching this issue, the Third Circuit has noted that “it is important . . . that only truly duplicative proceedings be avoided. When the claims, parties or requested relief differ, deference may not be appropriate.”[60] If the proceedings are not parallel, the district court must exercise jurisdiction and may not abstain from the federal action.

         Here, although the facts and parties are the same, the disposition of the declaratory judgment and the defamation claims are sufficiently distinct from the first amendment retaliation claim. This “lack of identity of all issues necessarily precludes Colorado River abstention.”[61] Put differently, for cases to be parallel, “there must be a likelihood that the state litigation will dispose of all the claims presented in the federal case.”[62] Disposition of those two state actions certainly will not involve any finding of whether Sheriff Lusk improperly retaliated against Riley and Phillips based on their speech in violation of the First Amendment to the United States Constitution. Therefore, because the lawsuits are not parallel, this Court “lacks power to abstain.”[63] Consequently, I need not decide whether extraordinary circumstances are present via the six-factor test.[64]

         In sum, and upon consideration of the Colorado River factors, I find that “exceptional circumstances” are not presented by this litigation.[65]

         3. Waiver under Pennsylvania Rule of Civil Procedure 1020(d)

         Pennsylvania Rule of Civil Procedure 1020 discusses the state's joinder rules. Subsection (a) deals with permissive joinder, whereas subsection (d) attends to, mandatory joinder. Rule “1020(d), [] generally prohibits splitting causes of action, ”[66] and reads, as follows:

(d) If a transaction or occurrence gives rise to more than one cause of action heretofore asserted in assumpsit and trespass, against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person. Failure to join a cause of action as required by this subdivision shall be deemed a waiver of that cause of action as against all parties to the action.

         This rule “requires a party to join all causes of action against the same defendant based on different legal theories arising out of the same factual transaction.”[67] “The purpose of Rule 1020(d) is ‘to avoid a multiplicity of suits and to ensure prompt disposition of all rights and liabilities of parties in a single suit.'”[68] “Of course, any cause of action joined must be one that is cognizable in a civil action against the defendant in the state court.”[69]

         The Court will leave this question to another day. “The rule requires that all causes of action arising from the same transaction or occurrence be joined whether they sound in contract, tort, or both.”[70] Here, Defendant argues that Plaintiffs should have joined their retaliation claim brought under the United States Constitution with their defamation claim (clearly a tort) and /or their declaratory judgment claim. I am uncertain as to whether the Pennsylvania General Assembly intended federal constitutional claims to be waived if not joined with state assumpsit and trespass claims. Neither party has briefed this nuanced issue of whether waiver applies because this constitutional claim was not brought with the defamation claim.

         Moreover, the note to Rule 1020 states, “Note: Mandatory joinder is limited to related causes of action heretofore asserted in assumpsit and trespass. There is no mandatory joinder of related causes of action in equity.”[71] Thus, again it is not clear if the declaratory judgment Plaintiffs seek is a demand for equitable or legal relief, as ...

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